Everyone agrees with the Constitution, but not everyone is clear on enforcing the Constitution: CJP Umar Ata Bandial

ISLAMABAD, June 07 (SABAH): A three-member bench of the Supreme Court (SC) headed by Chief Justice of Pakistan and comprising Justice Ijazul Ahsan and Justice Munib Akhta on Wednesday clubbed together pleas against the recently-enacted Supreme Court (Review of Judgments and Orders) Act 2023 with the Election Commission of Pakistan’s (ECP) petition asking the top court to revisit its April 4 order of holding polls to the Punjab Assembly on May 14.

The decision was taken as the bench took up the ECP’s review petition on Wednesday.

At the previous hearing, Attorney General for Pakistan (AGP) Mansoor Usman Awan had surprised judges by disclosing that fresh legislation, which expanded the jurisdiction of the court by giving a right to appeal under Article 184(3), had come into force.

Article 184(3) of the Constitution grants the SC powers to issue an order if it considers a question of public importance with reference to the enforcement of fundamental rights involved.

According to the Supreme Court (Review of Judgments and Orders) Act 2023, the scope of a review will be similar to Article 185, which confers appellate jurisdiction to the top court.

Upon the AGP’s revelation, the SC had adjourned proceedings on the ECP’s petition, saying the new law would be discussed in court.

During Wednesday’s hearing, CJP Umar Ata Bandial remarked that a number of pleas against the new law had been filed with the top court and decided to hear them alongside the ECP’s review petition.

He also issued notices to the federal government, AGP Awan, the president through the principal secretary, Ministry for Parliamentary Affairs and Secretariat Senate. The hearing was adjourned till June 13.

At the outset of the hearing, the bench called PTI lawyer Senator Barrister Syed Ali Zafar to the rostrum and asked about his stance on the review of judgments law.

“The new law is inconsistent with the Constitution and is a continuation of the Supreme Court (Practice and Procedure) Act, 2023,” the lawyer said.

Zafar also suggested that the SC should continue hearing the ECP’s review petition, saying he had prepared arguments in this regard.

“The court can simultaneously also hear pleas against the review of judgments law. If the review point persists, a larger bench can be constituted,” he added.

Here, Justice Bandial remarked that the court had to look at the law at one point or the other.

Meanwhile, Justice Akhtar observed that if the review law was applicable to the ECP’s petition, the electoral body’s lawyer would have to again present his arguments before a larger bench.

“How can the court continue hearing the Punjab polls case if the Supreme Court (Review of Judgments and Orders) Act 2023 has come into force? Is the new law not applicable to this case? Do you think the ECP’s petition should be heard as per the old law?” the judge asked Zafar.

The PTI lawyer replied that the case should, at the moment, be heard according to the old laws.

“This is not a brand new case,” Justice Bandial said. “This is an appeal against a decision that was taken previously and appeals have several limitations.”

The top judge noted that a lot of time had passed in hearing arguments and recalled that the ECP lawyer had already presented his argument on the scope of a review. “If the matter goes to a larger bench, arguments will have to be heard once again.”

“This matter is linked to a national issue,” Justice Bandial observed. “Our decision regarding [polls on] May 14 cannot be withdrawn. Elections in 90 days is a constitutional requirement.

“Everyone agrees with the Constitution, but not everyone is clear on enforcing the Constitution,” he said.

The top judge further pointed out that the ECP had given the date of October 8 for polls but then said the situation had changed due to the events of May 9 — when protests had erupted across the country following PTI chief Imran Khan’s arrest. “The ECP should have the ability to hold elections in any circumstances,” he remarked.

At one point during the hearing, Justice Bandial said it was good that the government and institutions had decided to present their arguments in court.

“They were otherwise protesting at the gate of the court,” he recalled, referring to the Pakistan Democratic Movement’s sit-in outside the top court last month.

“What was the purpose of that protest?” the CJP asked. “The responsibility of dispensing justice is of Maula Karim [God],” he said, adding that the court was striving to ensure the rights of the people and those who interfered in this would suffer “dire consequences”.

At one point, Barrister Syed Ali Zafar put forward a request before the court and asked the bench to decide the ECP’s petition. “Five judges […] seven judges […] they are playing mathematics,” he contended.

The lawyer reiterated that the review of judgments law was unconstitutional. “I had objected to it in the Senate too […] If you want to bring changes to the law, do it through amendments,” he said.

Here, CJP Bandial asked, “Are you trying to say that the appeal was given a new name under a new law?”

The PTI counsel replied that the scope of review and appeal were separate under the law. “But the review was turned into an appeal by going against the Constitution,” he said.

The top judge stated the law had been restricted to Article 184(3) of the Constitution.

During the hearing, CJP Bandial remarked that the court will try to make a decision on the Election Commission of Pakistan’s (ECP) plea for reviewing the verdict on the Punjab elections at the earliest.

“We have received some petitions. The matter of the Review Order Act has to be seen at this stage,” CJP Bandial said.

He said that the court would issue notice to the AGP, after which the bench will hear the ECP’s review plea under the Review Order Act.

The CJP then asked PTI lawyer Barrister Ali Zafar to give his views on the Review Order Act.

At this, Barrister Zafar maintained that the SC Review Order Act was against the Constitution.

“The same matter was raised in the SC Practice and Procedure Act, on which the Supreme Court has given a stay,” the lawyer contended, claiming that the same stay applied to the Review Order Act as well.

He contended that the SC had the authority to hear the ECP’s review plea as the Review Order Act did not yet apply to the court due to the stay.

The court can hold back the decision on the Punjab election review case till the decision on Review Order Act, the barrister said while urging the court to decide on the election case soon.

At this, Justice Akhtar remarked that the ECP’s lawyer would have to give arguments before a larger bench if the Review Order Act is enforced.

“How could the court hear the Punjab election case if the SC Review Order Act has been enforced,” he asked.

He also asked the lawyer to tell him how did the Review Order Act not apply to the SC.

Meanwhile, CJP Bandial remarked that everyone wanted a decision on the Punjab election review case.

“There are certain limits for [filing] an appeal,” the top judge remarked, adding that the ECP’s lawyer had contended that they had extensive authorities.

“The matter of elections is a national issue. Implementation on the May 14 orders is not possible but this has become a historical verdict,” he added.

Meanwhile, petitioners Zaman Khan Wardag and Ghulam Mohiuddin adopted the arguments of Barrister Syed Zafar.

The court remarked that the petitioners maintained in the pleas that the act was illegal and a constitutional amendment was required to extend the jurisdiction of reviews.

A stay had already been issued on the implementation of the SC Practice and Procedure Act by the larger bench, the court stated while ordering to fix both cases for hearing together on June 13.

CJP Bandial remarked that the SC would conduct hearing on the cases daily after the said date.

The court, while issuing notices to AGP, President Arif Alvi, the federal government, Ministry of Parliamentary Affairs, ordered fixing the hearing of both cases together on June 13.

Speaking to the media outside the court, Senator Barrister Syed Ali Zafar emphasised that the Constitution stipulated the obligation to hold elections within 90 days following the dissolution of an assembly.

Despite the Supreme Court’s directive, the scheduled elections in Punjab on May 14 did not take place, he added. Zafar pointed out that the Constitution was deemed ineffective in Punjab.

Regarding the Supreme Court’s decision on polls, he said the ECP filed a petition for a review, alongside other pleas submitted under the Supreme Court (Review of Judgements and Orders) Act 2023.

Zafar further stated that notices were issued to the attorney general and other parties involved. The next hearing of the case is scheduled for next Tuesday. He expressed optimism, affirming that victory would be in favour of the Constitution.